Estate of Simon

Filed 7/18/07 Estate of Simon CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Aviva K. Bobb, Judge. Affirmed.

Law Office of Christie Gaumer and Christie Gaumer for Petitioner and Appellant.

Mitchell, Silberberg & Knupp, Allan B. Cutrow; Meyers McConnell, John W. McConnell, III and Renee S. Konigsberg for Objectors and Respondents.

I. INTRODUCTION

This is an appeal in a probate case. Petitioner, David Simon,^[1] appeals from a summary judgment in favor of objectors and interested persons, Robert Eroen, Jill Rosenthal, and the law firm of Eroen & Eroen. We conclude the settlement and dismissal with prejudice of a prior civil action and the withdrawal of a prior probate petition acts as a retraxit. Accordingly, we affirm the summary judgment.

II. OVERVIEW AND SUMMARY OF HOLDING

On November 21, 2001, David filed the probate petition in this case. David seeks to probate the 1984 will of his mother, Helga Brasch Simon. In a prior civil action, David sued Ernst and Adelle Simon. Ernst was Davids father. Adelle was Ernsts second wife. In the prior lawsuit, David sued Ernst and Adelle to recover property in Helgas estate. In addition, David sought to probate Helgas 1983will. In the underlying litigation, David was represented by Mr. Eroen, Ms. Rosenthal, and their law firm. In 1998, the underlying litigation settled.

David has now sued Mr. Eroen, Ms. Rosenthal, and their law firm for legal malpractice. David alleges his attorneys committed malpractice when they represented him in connection with the probate of Helgas 1983 will. As noted, Mr. Eroen, Ms. Rosenthal, and their law firm have appeared in the present probate proceeding as interested parties and objectors. In the present probate action, Mr. Eroen, Ms. Rosenthal, and their law firm secured an order granting summary judgment. David appeals from the summary judgment entered in favor of Mr. Eroen, Ms. Rosenthal, and their law firm.

As will be noted, we find undisputed evidence: David settled the prior civil action and withdrew the petition to probate Helgas 1983will as part of a global resolution of all claims with respect to her estate; David settled the prior lawsuit with the express knowledge Helga had drafted wills more favorable to him; and David knew Ernst and Adelle had intentionally destroyed one or more of Helgas wills when the prior lawsuit was dismissed and the initial probate petition was withdrawn pursuant to the settlement. We conclude the settlement and dismissal with prejudice of the prior civil action and the withdrawal of the prior probate petition acts as a retraxit.

We are only addressing the issues before us. This is not an appeal from any orders made in the legal malpractice action filed against Mr. Eroen, Ms. Rosenthal, and their law firm. The application of our holding to the legal malpractice lawsuit against Mr. Eroen, Ms. Rosenthal, and their law firm is a matter we leave in the good hands of the judge handling that case.

III. BACKGROUND

A. The Prior Civil Action And The First Probate Petition

David is the only child of Ernst and Helga. Helga died on October 7, 1984. Ernst subsequently married Adelle. In 1998, David filed a petition to probate Helgas January 13, 1983 will. Also in 1998, David filed a civil action against Ernst and Adelle. In his first amended verified complaint filed in the 1998 lawsuit, David alleged: Helga had prepared a January 13, 1983 holographic will leaving him 49 percent of her community property assets together with certain personal property; this 1983 will was last in Ernsts possession; David first learned of the 1983 will in March 1998; Helgas estate consisted of valuable rare stamp and coin collections, stocks, a German Restitution Fund in Germany valued at approximately $500,000.00, cash, and community property interests in nine real properties valued at $2 million; Ernst had a tax preparation business; David worked for Ernst as a tax preparer; in addition, David had managed his parents investment properties since 1981; and David had not been fully compensated for his services. David sought to: recover compensation for his tax preparation and real property management services; inherit under Helgas January 13, 1983 will; and enforce Ernsts alleged promise to convey his interest in the nine real properties to David. Significantly, David further alleged: Plaintiff is informed and believes and thereon alleges that Helga Brasch Simon drafted other Wills more favorable to David Simon, the originals David Simon was informed were last in the possession of defendant [Ernst] Simon. [] . . . Plaintiff alleges that defendants [Ernst] Simon and [Adelle Simon] have intentionally destroyed Helga Simons original January 13, 1983 Last Will, and possibly other original Wills, and as such [Ernst] Simon has failed to distribute property pursuant to the last requests of Helga Simon. As will be noted, this admission is pertinent to the outcome of this appeal.

At his deposition, David testified Helga had made a last will in or about March 1984. They had discussed it and Helga had handed it to him. He gave the will to Ernst without making a copy. Ernst had a draft of this final will. The draft and the final will were identical with two exceptions. First, the final will forgave a $4,000 debt owed by David to Helga. Second, the final will stated Helga wanted 2,000 trees planted in Israel in Davids maternal grandmothers memory. During his deposition, David was shown a copy of the January 13, 1983 will. David testified it could be Helgas final will, except that it did not include the foregoing two items, and it made no reference to her claim against the German government.

On November 3, 1998, the parties entered into an on-the-record settlement of the civil action and the probate proceeding. Davids counsel stated on the record, Your Honor, the parties have entered into a global settlement agreement to resolve all issues. Davids counsel further advised the trial court, [T]heres a covenant not to ever sue again Ernst Simon, Adelle [Simon]. Pursuant to the settlement agreement, David acquired, among other things: three parcels of real property; certain personal property including all of Helgas jewelry; ownership of Ernsts tax preparation business; and the right to any reparations claim Helga had or may have against the German government. The written Settlement Agreement and Mutual Release includes the agreement not to sue, The parties agree not to sue each other, with the exception of (1) breach of this agreement and/or ([2]) future conduct of the parties which would give rise to a cause of action. David also agreed to dismiss the pending probate action. The petition to probate Helgas January 13, 1983 will was withdrawn on March 5, 1999. The civil action was dismissed with prejudice on August 1, 2000.

B. The Present Probate Petition And The Summary Judgment Motion

On June 26, 2001, David discovered a holographic will written and signed by Helga dated June 5, 1984. On November 21, 2001, David filed a petition to probate the June 5, 1984 will. Mr. Eroen, Ms. Rosenthal, and their law firm appeared as objectors and interested parties in the present probate proceeding. Mr. Eroen, Ms. Rosenthal, and their law firm sought a summary judgment on the ground, among others, that Davids probate petition was barred by the November 3, 1998 settlement of the prior actions. David opposed the summary judgment motion. David presented evidence: Ernst and Adelle had represented, when the prior civil action was pending, that Helgas January 13, 1983 will was the last operative will; David accepted that representation; and any deposition answers were based on the 1983 will. David further asserted that at the time of the settlement, he did not know the terms of any wills more favorable to him.

The probate court granted summary judgment on res judicata grounds. The probate court found: David compromised and released all rights to his mothers estate under the November 3, 1998 settlement; David admitted under penalty of perjury that he knew Helga might have drafted other wills more favorable to him; David knew the potentially more favorable testamentary instruments were in Ernsts possession; David believed Ernst and Adelle had intentionally destroyed at least one of Helgas wills, and possibly other original wills; whether David knew the exact terms of those other wills at the time he entered into the settlement was irrelevant; and the settlement was res judicata and precluded David from pursuing the present probate petition.

IV. DISCUSSION

A. Standard of Review

We apply the following standard of review as articulated by the Supreme Court. In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, the Supreme Court described a partys burdens on a summary judgment or adjudication motion as follows: [F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a courts action in his favor bears the burden of persuasion thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . . [] [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] (Fns. omitted; see Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

We review the probate courts decision to enter summary judgment de novo. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) The Supreme Court has further held, In performing our de novo review, we must view the evidence in a light favorable to [the party opposing summary judgment] (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107), liberally construing her [or his] evidentiary submission while strictly scrutinizing [the moving partys] own showing, and resolving any evidentiary doubts or ambiguities in [the opposing partys] favor. (Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1517; Kaplan v. LaBarbera (1997) 58 Cal.App.4th 175, 179.) (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; accord, Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The probate courts stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196; Dictor v. David & Simon, Inc. (2003) 106 Cal.App.4th 238, 245.)

B. Retraxit and Res Judicata

Retraxit is the common law term for a voluntary dismissal with prejudice, including one entered in open court pursuant to a stipulation. (Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 455; Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 55.) The Court of Appeal has held: The . . . term with prejudice clearly means the plaintiffs right of action is terminated and may not be revived. (Roybal v. University Ford [(1989)] 207 Cal.App.3d [1080,] 1086-1087.) (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820-821.) A retraxit acts as a bar to any further action on the same cause. (Gagnon Co., Inc. v. Nevada Desert Inn, supra, 45 Cal.2d at p. 455; Goddard v. Security Title Ins. & Guar. Co., supra, 14 Cal.2d at p. 55.) It determines the issues in the case and precludes the dismissing party from litigating those matters a second time. (Gagnon Co., Inc. v. Nevada Desert Inn, supra, 45 Cal.2d at p. 455; Torrey Pines Bank v. Superior Court, supra, 216 Cal.App.3d at p. 820.) It is well-settled that a retraxit is equivalent to a judgment on the merits, which bars a subsequent action for the same cause. (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1330-1331; Le Parc Community Assn. v. Workers Compensation Appeals Bd. (2003) 110 Cal.App.4th 1161, 1169.) As the Court of Appeal explained in Torrey Pines Bank v. Superior Court, supra, 216 Cal.App.3d at page 822, [A] dismissal with prejudice [is] a retraxit constituting a decision on the merits invoking the principles of res judicata. [Citations.] More specifically, it has been held: [A] court will apply principles of res judicata to resolve precisely what causes of action or issues are barred as a result of the retraxit. . . . [R]es judicata principles are applied to ascertain the scope and effect of the retraxit and thus the principles operate together. (Accord, Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America, supra, 133 Cal.App.4th at p. 1331.)

Whether Davids voluntary dismissal of the prior civil action and withdrawal of the first probate proceeding bars the present proceeding must be analyzed under res judicata principles. (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America, supra, 133 Cal.App.4th at p. 1331.) The Supreme Court explained the res judicata doctrine in Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897: Res judicata describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, precludes relitigation of issues argued and decided in prior proceedings. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action. [] A clear and predictable res judicata doctrine promotes judicial economy. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory of for different relief. (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245.) A predictable doctrine of res judicata benefits both the parties and the courts because it seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration. (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, 280, p. 820.) (Fn. omitted, orig. italics.)

What constitutes a cause of action for res judicata purposes is evaluated under the primary right theory. The Supreme Court has held: As we explained in Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682: [] The primary right theory is a theory of code pleading that has long been followed in California. It provides that a cause of action is comprised of a primary right of the plaintiff, a corresponding primary duty of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.] . . . [] As far as its content is concerned, the primary right is simply the plaintiffs right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. [Citation.] The primary right must also be distinguished from the remedy sought: The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other. [Citation.] [] The primary right theory . . . is invoked . . . when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement [citations]; or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata. (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 904.)

David argues: the 1998 settlement has no res judicata effect; the 1984 will could not have been litigated in the prior action because Ernst and Adelle withheld it; the 1984 will was not discovered until 2001; and the 1998 settlement was based on the 1983 will and his interests under that will. David further asserts his knowledge at the time of the 1998 settlement that wills more favorable to him had existed is irrelevant because he believed the 1983 will was Helgas lastwill.

The res judicata doctrine bars the present petition. In the prior civil action and pursuant to the petition to probate the 1983 will, David sought to recover his interest in Helgas estate. The injury addressed was Ernsts failure to distribute property pursuant to Helgas express testamentary wishes. Davids verified first amended complaint in the underlying civil action admitted three pertinent facts. David was aware Helga had or may have drafted other wills more favorable to him than the 1983 will. Those wills were in Ernsts possession. And Ernst and Adelle had intentionally destroyed Helgas 1983 will and may have done the same with respect to other original wills. David cannot avoid those judicial admissions. (Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 168-169; Walker v. Dorn (1966) 240 Cal.App.2d 118, 120.) Further, the parties did not state that the settlement was premised on the 1983 will. Rather, the global settlement expressly resolved all issues as to Davids property rights under Helgas will or wills. Moreover, David agreed not to sue Ernst and Adelle again except in the event of a breach of the settlement agreement or future conduct giving rise to a cause of action. David does not argue Ernst and Adelle breached the settlement agreement. David has not alleged any conduct occurring after the settlement giving rise to a cause of action. The present petition to probate the 1984 will seeks to vindicate the same primary right to inherit through Helga that was addressed in the prior civil action and probate proceeding and resolved by settlement. The settlement is res judicata.

Davids reliance on Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 63-69, is misplaced. In Nakash, the plaintiffs, owners of Guess? Inc., and the defendants, owners of Jordache Enterprises, Ltd., entered into a stock purchase agreement. Under the terms of the stock purchase agreement, the defendants acquired 51 percent of the stock of Guess? Inc. The plaintiffs subsequently filed a federal court action seeking rescission of the stock purchase agreement. They alleged the defendants had defrauded them. The parties settled the federal action. Their settlement agreement stated the parties released each other from any claims as of this day. (Id. at p. 63.) The federal action was dismissed with prejudice.

Several months later, the plaintiffs filed a state court action against the defendants. Again the plaintiffs sought to rescind the stock purchase agreement for fraud. The defendants moved for summary judgment or adjudication. The defendants argued the state court action was barred by the prior settlement of the federal lawsuit. Our colleagues in Division One of this appellate district described the defendants argument: [Defendants] argue that the [plaintiffs] should be barred from seeking rescission of the stock purchase agreement of July 1983 because all claims arising from that agreement had been effectively disposed of by the settlement and release executed by the parties in January 1984which in turn had led to the dismissal, with prejudice, of the federal action seeking rescission of the same agreement. [Defendants] contended that having made the deal which enabled the [plaintiffs] to receive 1 percent of Guess[? Inc.] stock from [the defendants] in return for ending the federal litigation, the [plaintiffs] gave up their right to attempt to rescind the stock purchase agreement at any future time. (Nakash v. Superior Court, supra, 196 Cal.App.3dat p. 64.) The plaintiffs argued the state court action arose primarily from events occurring or becoming known to them after the settlement in the federal action. The plaintiffs declared they had not intended, when they entered into the settlement and release, to include claims for wrongdoing of which they had no knowledge at the time.

The trial court denied the summary judgment motion. The Court of Appeal upheld the trial courts order denying the summary judgment motion. The Court of Appeal held the scope of the settlement agreement was a question of fact that had to be resolved before the applicability of res judicata principles could be determined. (Nakash v. Superior Court, supra, 196 Cal.App.3dat p. 67.) The Court of Appeal assumed the settlement agreement encompassed all claims then known to the plaintiffs or which reasonably could have been known to them. But, the second suit involved a different cause of action arising from an ongoing business relationship and alleged continuous or recurring misconduct. (Id. at pp. 69-70.) Our Division One colleagues concluded: Res judicata was never intended to be used as a vehicle for forever immunizing any party in a continuing business relationship from liability for continuous or recurrent breaches of contract, conspiracy directed toward such breaches, or for continuous or recurrent tortious misconduct. All have been pleaded here . . . . (Id. at p. 69.)

In the present case, there is no new cause of action arising from events occurring after the settlement. There is no evidence of ongoing or recurring misconduct. Even if Ernst and Adelle destroyed or withheld the 1984 will, as David contends, those acts occurred prior to the 1998 settlement. Moreover, at the time of the 1998 settlement, David had admitted and acknowledged the possibility that Ernst and Adelle had destroyed a will or wills. David acknowledged those instruments could be more favorable to him. Nakash is not controlling authority.

C. Fraudulent Nondisclosure

David asserts Ernst and Adelle fraudulently withheld the 1984 will in the prior litigation: [Their] production of the 1983 will [in the prior action] included two handwritten pages that constitutes Helgas 1983 will and one of the pages from the 1984 willclearly showing that Ernst and [Adelle] had possession of the 1984 will, but deliberately chose not to produce the will. The elements of a fraudulent nondisclosure claim are: A party seeking rescission based on fraudulent nondisclosure must show (1) the defendant failed to disclose a material fact which he knew or believed to be true, and (2) the defendant had a duty to disclose that fact. (Welch v. State of California (1983) 139 Cal.App.3d 546, 556.) The duty to disclose arises when two elements are present: (1) the material fact is known to (or accessible only to) the defendant; and (2) the defendant knows the plaintiff is unaware of the fact and cannot reasonably discover the undisclosed fact. (Reed v. King (1983) 145 Cal.App.3d 261, 265; Karoutas v. HomeFed. Bank (1991) 232 Cal.App.3d 767, 771.) (San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, 1055, orig. italics.) The San Diego Hospice court further explained: A duty to disclose may also arise in the so-called half truth contextthat is, when a speaker makes a representation which, though not false, he knows will be misleading absent full disclosure of additional facts known to him which qualify the initial representation. (McCue v. Bruce Enterprises, Inc. (1964) 228 Cal.App.2d 21, 25-26.) (San Diego Hospice v. County of San Diego, supra, 31 Cal.App.4th at p. 1055, fn. 4.)

In the present case, there is no evidence of fraudulent nondisclosure. David declared he found the 1984 will in a drawer in the accounting office. David once shared that office with Ernst. That Ernst and Adelle produced one page of the 1984 will in a discovery response is not sufficient evidence standing alone to support an inference they intentionally withheld the 1984 will because it was more favorable to David. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 51; Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) Further, David knew at the time of the settlement that Helga had made a will in or about 1984 and that Ernst had a copy of it. Moreover, David acknowledged Helga had drafted wills more favorable to him than the 1983 will. David also acknowledged that Ernst and Adelle may have intentionally destroyed those wills.

D. Civil Code Section 1542

David argues the settlement agreement did not include a release or a Civil Code section 1542 waiver and therefore, on its face, it does not preclude further lawsuits. Civil Code section 1542 provides, A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. David asserts the 1998 settlement agreement cannot bar probate of the 1984 will because he did not know its terms when he agreed to settle all claims. David contends there is a triable issue of fact what is meant by all claims. David states, Here, [the record] is clear that . . . the term all refers to the [prior] civil lawsuit and . . . probate action, each of which was based on the 1983 will only.

We reject these arguments for several reasons. First, it is established that David did know or suspect that his mother had written wills more favorable to him. It is also established by Davids judicial admission that the wills were in Ernsts possession and may have been destroyed. David specifically so alleged in his verified first amended complaint in the prior civil action. There is no evidence the settlement agreement was predicated, expressly or otherwise, on an assumption no will more favorable to David had been executed after the 1983 will. David himself recalled a different will executed in or about 1984. Second, in the 1998 settlement, David agreed not to sue Ernst and Adelle again unless they breached the settlement agreement or committed subsequent acts giving rise to a cause of action. David litigated and settled his right to inherit through his mother. The matter is now res judicata.

E. Evidentiary Objections

Davids final argument in his opening brief on appeal is that the probate court abused its discretion in sustaining the objectors evidentiary objections. David argues, without addressing individual rulings, that a deceased persons statements of testamentary intent are admissible. David cites Estate of Morrison (1926) 198 Cal. 1, 7, and Estate of Janes (1941) 18 Cal.2d 512, 516. David also acknowledges, however, that these statements pertain to the testamentary provisions of the will and are not directly relevant to the res judicata argument. Since this appeal is resolved on res judicata grounds, it is unnecessary to address Davids evidentiary objection contentions. (Cf. City of Monte Sereno v. Padgett (2007) 149 Cal.App.4th 1530, 1540; Falkowski v. Imation Corp. (2005) 132 Cal.App.4th 499, 516.)

V. DISPOSITION

The summary judgment is affirmed. The objectors and interested parties, Robert Eroen, Jill Rosenthal, and Eroen & Eroen, are to recover their costs on appeal from petitioner, David Simon.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

^[1] We refer to the Simon parties by their first names for purposes of clarity. No disrespect is intended.